File 2: Opinion of Member Armendariz

[ v58 p665 ]

Opinion of Member Armendariz, concurring in part and dissenting in part

I agree with my colleagues' resolution of this case in all respects but the following. With respect to the Respondent Western Region, I agree with its exception asserting that the complaint was not issued in accordance with the FLRA's Regulations. In my view, this failure to comply with the Regulations deprived the Western Region of its rights to due process.

It is undisputed that the initial charge did not name and was not served on the Western Region. Moreover, it is undisputed that the General Counsel issued the complaint against the Western Region on the same day that the charging party amended the charge to include the Western Region as a charged party for the first time. At the hearing before the Judge, the Western Region contended that its ability to defend itself in these circumstances was "prejudice[d]," and that without the charges being served on the Western Region, "there is no way it can be held responsible for an unfair labor practice." Transcript at 65. The Judge "agree[d]," and stated that "everything we've got is premised on the idea that the General Counsel is at some point going to show that an unfair labor practice charge was made against the Western Regional Office and the Western Region did receive service. Now, when it received that service may go to the ability of the Western Region to defend itself." Id. at 65-66.

In his decision, the Judge rejected the Respondents' assertion that the charge was not amended prior to the issuance of the complaint, in violation of § 2423.9. In this regard, the Judge stated:

The amended charge was filed on the same day that the Complaint issued, but paragraphs 9 and 10 of the Complaint
expressly refer to the charge having already been amended. It is evident, therefore, that the amended
charge and Complaint complied with section 2423.9.

Judge's Decision at 12.

In my view, the General Counsel's issuance of the complaint against the Western Region in these circumstances violated both the letter and the spirit of §§ 2423.9, 2423.8(a), and 2423.6(d), and inherently prejudiced the Western Region by not affording it an opportunity to respond at all before the complaint was issued against it.

Section 2423.9 states that a charge may be amended prior to the issuance of a complaint. Here, the amended charge was signed by the charging party on the same day that the General Counsel issued the complaint. Unless § 2423.9 can be satisfied by amending a charge minutes or hours before issuing a complaint (a reading that is unsupported by the regulation or by caselaw and is inconsistent with the clear purpose of the regulation to provide notice), this section was violated in this case.

Further, § 2423.8(a) states that all parties are afforded an opportunity to present their evidence and views to the Regional Director during the investigation of a charge. The Judge stated that "as a result of the same-day filing of the amended charge and the Complaint, Respondent Western Region is correct in stating that it did not have any formal opportunity to present evidence to the FLRA before a complaint was issued." Judge's Decision at 12. However, the Judge rejected the Respondent's claim that § 2423.8(a) was violated, finding that under Authority precedent, a Regional Director has discretion as to the extent to which a charged party is allowed to present its evidence, and the Authority will not second-guess the exercise of that discretion.

That precedent is inapplicable here. In this case, the Regional Director did not exercise discretion as to how much evidence the Western Region could present. Rather, by virtue of the timing of events, the Western Region was not able to present any evidence once it found out it was being charged with an unfair labor practice. Since the Western Region was never charged with anything prior to the issuance of the complaint, it never had the opportunity to present evidence or any other matter to the Regional Director during the investigation of a charge. In my view, this violation of § 2423.8 clearly prejudiced the Western Region, since the Western Region was deprived of the opportunity to present evidence or any other matter for the Regional Director to consider before she determined whether or not issuance of a complaint against the Western Region was warranted.

In addition, § 2423.6(d) requires the charging party to serve a copy of the charge on the charged party. This provision also states that the FLRA Region routinely serves a copy of the charge on the charged party, but the charging party remains responsible for serving the charge. The Western Region asserts, without contradiction, that it was not served with a copy of the amended charge prior to the issuance of the complaint naming the Western Region as a respondent. The clear purpose of this regulation, as with the other previously discussed regulations, is to provide a party with notice that it is being charged with an unfair labor practice so that it can have the opportunity to present evidence or any other matter to the Regional Director during the investigation of a charge and prior to the issuance of a [ v58 p666 ] complaint. As it is clear that this did not happen in this case, this regulation was violated as well and prejudiced the Western Region.

Finally, I reject the Judge's characterization of the Western Region's claim of prejudice as "more than a little disingenuous." Judge's Decision at 12 n.4. I agree, for the reasons stated in the Respondents' exceptions, that the Judge's characterization is not supported by the record. Moreover, the logical extension of the Judge's reasoning is that an agency that is not formally charged in accordance with the FLRA's Regulations must nonetheless take whatever opportunity exists to present evidence to the Regional Director, as a precaution in the event that the agency is later charged with an unfair labor practice and not given any opportunity to present evidence. This stands the regulation on its head and is inconsistent with the due process rights established by the regulation.

For these reasons, I would dismiss the complaint against the Western Region. [*]

Inasmuch as I would dismiss the complaint against the Western Region on this basis, I see no need to resolve the remaining
exceptions pertaining to the Western Region. In this regard, I do not adopt my colleagues' rationale and conclusion that the Judge
did not err by refusing to consider the Western Region's defenses that item 6 was not reasonably available or normally maintained.
Specifically, I do not address whether these defenses constitute countervailing anti-disclosure interests that, under the Authority's
precedent, must be raised at or near the time of a union's data request.